What is the test for determining whether a single mother should live primarily with her children?

New Brunswick, Canada


The following excerpt is from B.C. v. M.S., 2015 NBCA 46 (CanLII):

The motion judge reviewed the evidence and then made determinations with respect to the best interests of the children, regarding their custody and access, in accordance with the definition in s. 1 of the Act. The motion judge set out the criteria from (a) to (g) and then applied them to the facts. In the end, the judge made the following finding of fact: When all is said and done it is my view, and I so find, that on the totality of the evidence presented, it is in the best interests of the children to live primarily with M.S. I do not say this without a high degree of sympathy that, as a single mother, B.C. is struggling with significant demands. She, in many ways, should be supported in her endeavor to pursue higher education. But the law dictates that such sympathy must be secondary to the determination of what is best for the children. This is why I emphasized above the words of then Madam Justice McLachlin from Young v. Young, supra where she said, He or she [the trial judge] must not do what he or she wants to do but what he or she ought to do. [para. 98] [Emphasis in original.]

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